My ex-wife's boyfriend wants to try to claim my son on his taxes... is this legal?

August 19, 2009 1:15 PM

My ex-wife's boyfriend wants to try to claim my son on his taxes... is this legal?

Here's the situation, and I've read over the IRS site, but I'm a bit confused.

I have joint custody of my two year old son. We have agreed to alternate years in which we can claim our son on our taxes, so I claimed him in 2008 while she will do so in 2009.

As far as residency, she's the custodial parent and I'm the non-custodial parent, but I have him 50% of the time exactly. Equal time for both of us. I pay the same expenses, 50% of the child care, and 50% of his medical insurance on her plan.

Is it legal for him to actually claim my son during her alternate year in order to receive a bigger payoff because he makes less money?

From the reading at the IRS site, she would have to be married to him in order for my son to pass the Relationship Test.

posted by MMALR to law & government (6 answers total)

You're wondering whether he can claim your son as a dependent in the alternating year in which you will not be doing so? Legal or not, this does not sound as though it is your problem.
posted by dersins at 1:30 PM on August 19, 2009 [4 favorites]

No, it is not legal for him to do so. If he married your ex that would be another story. I have been in this position and he has absolutely no legal right that I know of to claim your son as a dependent. Your ex is the only one that can.
posted by ionized at 1:35 PM on August 19, 2009

IANAA. Does he actually pay the expenses to care for your son? Publication 501 is your friend here. Your son isn't the boyfriend's child, so your son isn't his Qualifying Child. So unless the boyfriend provided half of your son's total support for the year, he's his Qualifying Relative either. Ergo, he's not his dependent. Unless your ex-wife and her boyfriend are married, I can't see how this would be legal.

Besides, as the parent claiming your son this year, she would file form 8332 or a written declaration signed by you giving her the authority to take an exemption for your son for 2009. You're giving her, the other parent, that authority, not the boyfriend. Pretty sure the IRS is going to figure that one out sooner or later.
posted by zachlipton at 1:38 PM on August 19, 2009

You only file form 8332 if the non-custodial parent is going to claim the exemption.
posted by smackfu at 1:47 PM on August 19, 2009

Is the boyfriend living with your ex? As such, he might try to argue that since the child lives with him 50% of the time he can claim him. If he does claim your child and your ex also tries to claim your child, they would both need to use your child's SSN on the tax forms which they submit. The first one who files may get the money. However, if a second tax return is filed with the same dependent's SSN, the second return will get flagged by the IRS. They'll then look at both and determine which one really should have it. If they awarded funds to the boyfriend because he filed first, then, upon determining he had no right to claim your child, the IRS will fine him and try to get their funds back. In the meantime, they'll hold your ex's (if she filed second) return until they determine who should claim the child as a dependent. Since you're not filing this year, this is not your problem. If this happens next year, it becomes your problem.

I don't work for the IRS. I've just seen this happen with foster parents. When some foster parents have a foster child for more than 6 months, they will claim the child as a dependent. Sometimes, they get caught in this if the bio parents also claim the child on their taxes.
posted by onhazier at 2:06 PM on August 19, 2009

With any kind of shared custody you can only claim the child if they are either your biological or legally adopted child, a foster child placed by an agency, your step-child, a sibling or half sibling, or a descendant of any of those. To claim someone who does not meet that relationship test they would need to live with you all year, without shared custody elsewhere.
So legally, no, he can't claim him.

Doesn't mean he won't get away with it if he tries, but if he does and gets caught (which he will unless he outright lies on the form) your son's SSN will be flagged in future years, which can hold up your or your ex wife's return.

Also, should she be thinking of doing this because he hits the income bracket for the earned income credit if he filed with a child, it would not be possible at all. The EIC rules are stricter, and only allow you to claim those who meet the relationship criteria above (even if the unrelated child did live with you all year). That IS something the IRS checks up on, since it's a very very common form of tax fraud.

I worked at a big tax prep place for years, and we CONSTANTLY got people who came in with all sorts of unrelated kids SSNs and info for the EIC. This was right after they changed the rules to make it stricter. Turns out, up until that point, people without earned income were giving their kids ssn's and so on to other people so they could get the credit and split the money. A major scam that could earn people a couple thousand dollars per kid.
posted by Kellydamnit at 9:41 PM on August 19, 2009 [1 favorite]